ACADEMY FOR POSITIVE LEARNING, INC. v. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit

corporation, PALM BEACH MARITIME MUSEUM, INC., a Florida not-

for-profit corporation, d/b/a PALM BEACH MARITIME ACADEMY,

MARLENY OLIVO, an individual, and PEDRO OLIVO, an individual,

Appellants,

v.

SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA and G-STAR

SCHOOL OF THE ARTS, INC., a Florida not-for-profit corporation,

Appellees.

No. 4D19-2816

[February 24, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2019-CA-000405-

XXXX-MB.

Shawn A. Arnold and Braxton A. Padgett of The Arnold Law Firm, LLC,

Jacksonville, for appellants.

Jon L. Mills of Boies Schiller Flexner LLP, Miami, and Stuart A. Singer

and Sabria A. McElroy of Boies Schiller Flexner LLP, Fort Lauderdale, for

appellee, School Board of Palm Beach County.

ON APPELLANTS’ MOTION FOR REHEARING EN BANC AND

CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

After this court’s 2-1 affirmance opinion issued April 22, 2020,

appellants challenged the majority opinion by filing a motion for rehearing

en banc and certification of question of great public importance under

Florida Rules of Appellate Procedure 9.330 and 9.331, based on the

following arguments, in pertinent part:

Statewide there are more than 194,000 charter school

students in nineteen other counties across all five appellate

districts of the state where a voter-approved school board

operating millage is in place. Fla. H.R. Appr. Comm/Ways &

Means Comm., HB 7123 (2019) Final Bill Analysis (May 28,

2019); Fla. Dept. of Educ., Fla. Charter School Enrollment

Share. This Court’s ruling will be precedent over matters in

the Fourth District affecting 72,750 charter school students

and parents (including over 21,000 in Palm Beach County)

and millions of public dollars per year. Id. While House Bill

7123 (2019) amended section 1011.71(9), Florida Statutes, to

codify the requirement that school boards share voted

operating millage revenues with charter schools going

forward, this legislative “fix” does not provide a remedy to

Appellants because they were approved by voters prior to July

1, 2019.

Additionally, there are two lawsuits currently pending in

the Eleventh Judicial Circuit of Florida related to a school

board operating millage approved by voters in Miami-Dade

County, from which charter schools have similarly been

excluded. City of Aventura v. Sch. Bd. of Miami-Dade Cnty.,

Case No. 2020-006112-CA-01 (Fla. 11th Cir. Ct. 2020);

Archimedean Academy, Inc. v. Sch. Bd. of Miami-Dade Cnty.,

Case No. 2019-030739-CA-01 (Fla. 11th Cir. Ct. 2019). Other

litigation is easy to foresee.

This decision will also likely have a major impact on future

charter school funding cases. The majority’s interpretation of

the opening sentence of section 1002.33(17), Florida Statutes,

erodes a guiding principle established by the Legislature that

charter school students be funded the same as their

counterparts attending district schools. . . .

Notably, the underfunded mandates of the School Safety

Act apply to all public schools, including both charter schools

and district schools alike. The exclusion of Palm Beach

County’s charter schools from the referendum has created a

substantial disparity in funding between public charter

schools and district schools. These charters now face a

substantial hurdle in hiring qualified teachers to enable them

to successfully compete with the other public schools in the

district. § 1002.33(2)(c), Fla. Stat. (2019) (“Charter schools

may fulfill the following purposes: . . . Provide rigorous

competition within the public school district to stimulate

continual improvement in all public schools.”). Further, taxes

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paid by parents for the safety of children should not favor the

safety of school district children over public charter school

children.

Given the far-reaching implications of the panel’s decision

on charter school students across the state, ongoing litigation

involving the very same issue, and the varied conclusions of

five reviewing judges in three separate suits, this case is

exceptionally important and should be considered by this

Court en banc under Fla. R. App. P. 9.331(d).

....

If this Court declines to rehear this case en banc, the

Appellants alternatively request that this Court certify the

following question as an issue of great public importance for

review by the Supreme Court of Florida pursuant to Florida

Rule of Appellate Procedure 9.330(a)(2)(C):

Are local school boards required under section

1002.33(17), Florida Statutes, to share with public

charter schools revenues generated from a voted

operating millage levied pursuant to section 1011.71(9),

Florida Statutes, which was approved by voters prior to

July 1, 2019?

For the reasons argued above, we grant appellants’ motion for rehearing

en banc, withdraw this court’s 2-1 affirmance opinion issued April 22,

2020, and substitute the following reversal opinion in its place. We also

grant appellants’ motion for certification of question of great public

importance, although we certify a different question than that which

appellants have requested, as shown at the end of the following opinion.

Opinion

During the November 2018 election, the School Board of Palm Beach

County, Florida placed a referendum on the ballot asking county voters to

approve an ad valorem levy for the operational needs of only non-charter

district schools. We conclude the 2018 referendum’s exclusion of charter

schools violated section 1002.33(17), Florida Statutes (2018), providing

“[s]tudents enrolled in a charter school, regardless of the sponsorship,

shall be funded as if they are in a basic program or a special program, the

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same as students enrolled in other public schools in the school district.”

(emphasis added).

Based on the foregoing, we reverse the circuit court’s final judgment

(and its incorporated “Orders on Pending Motions for Summary

Judgment”) and find that the 2018 referendum did not violate Florida law,

as explained below. We remand for the circuit court to enter an order

denying the school board’s motion for summary judgment and granting

appellants’ motions for summary judgment, and to determine the proper

remedy to which appellants are entitled under their complaint.

The 2018 Referendum

The 2018 referendum appeared on the ballot as follows:

REFERENDUM TO APPROVE AD VALOREM LEVY FOR

SCHOOL SAFETY, TEACHERS AND OPERATIONAL

NEEDS

Shall the School Board of Palm Beach County have authority

to levy 1.00 mills of ad valorem millage dedicated for

operational needs of non-charter District schools to fund

school safety equipment, hire additional school police and

mental health professionals, fund arts, music, physical

education, career and choice program teachers, and improve

teacher pay beginning July 1, 2019 and automatically ending

June 30, 2023, with oversight by the independent committee

of citizens and experts?

______Yes

______No

Palm Beach County voters approved the 2018 referendum, which went

into effect on July 1, 2019.

The Underlying Litigation

After County voters approved the referendum, but before the

referendum went into effect, two Palm Beach County charter schools and

the parents of a student attending one of those charter schools

(collectively, “appellants”) filed a complaint for declaratory and injunctive

relief against the school board. The complaint requested the circuit court

to: (1) enter a declaratory judgment requiring the school board to share

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the 2018 referendum revenues with charter schools on a pro rata basis;

and (2) enjoin the school board from denying charter schools their

proportionate share of the 2018 referendum revenues. In the alternative,

the complaint requested the circuit court to declare the 2018 referendum

to be illegal and void. Appellants asserted the 2018 referendum’s

exclusion of charter schools violated section 1002.33(17), Florida Statutes

(2018), providing that “[s]tudents enrolled in a charter school, regardless

of the sponsorship, shall be funded as if they are in a basic program or a

special program, the same as students enrolled in other public schools in

the school district.” (emphasis added).

Appellants and the school board filed cross-motions for summary

judgment. The parties agreed no factual issues existed and the case

involved only statutory construction. However, despite having initially

pled an alternative request for relief asking the circuit court to declare the

2018 referendum to be illegal and void, appellants’ motion for summary

judgment primarily sought the entry of a declaratory judgment requiring

the school board to share the 2018 referendum revenues with charter

schools on a pro rata basis and enjoining the school board from denying

charter schools their proportionate share of the 2018 referendum

revenues. As the circuit court later observed, “Neither side wants to lose

the money, rather the parties simply disagree about who gets the money.”

Following a hearing, the circuit court issued an order granting the

school board’s motion for summary judgment and denying appellants’

motions. The circuit court found the 2018 referendum did not violate

Florida law. The circuit court later entered a final judgment in the school

board’s favor, prompting this appeal.

We conclude the 2018 referendum’s exclusion of charter schools

violated Florida law, as explained below.

A. Interpreting sections 1002.33(17) and 1011.71(9) in harmony

according to plain meaning favors the charter schools’ position.

The method by which students enrolled in charter schools are funded,

and the sources from which such funding is derived, are provided in

Section 1002.33(17), Florida Statutes (2018), titled “Charter schools.”

That section provides, in pertinent part:

(17) Funding. -- Students enrolled in a charter school,

regardless of the sponsorship, shall be funded as if they

are in a basic program or a special program, the same as

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students enrolled in other public schools in the school

district. . . .

....

(b) The basis for the agreement for funding students

enrolled in a charter school shall be the sum of the school

district’s operating funds from the Florida Education Finance

Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,

discretionary lottery funds, and funds from the school

district’s current operating discretionary millage levy;

divided by total funded weighted full-time equivalent students

in the school district; multiplied by the weighted full-time

equivalent students for the charter school. . . .

§ 1002.33(17)(b), Fla. Stat. (2018) (emphasis added).

Section 1011.71, Florida Statutes (2018), titled “District school tax,”

describes the sources from which “funds from the school district’s

operating discretionary millage levy” may be generated. That section

provides, in pertinent part:

(1) . . . [E]ach district school board desiring to participate in

the state allocation of funds for current operation as

prescribed by s. 1011.62(19) shall levy . . . a millage rate not

to exceed the amount certified by the commissioner as the

minimum millage rate necessary to provide the district

required local effort for the current year, pursuant to s.

1011.62(4)(a)1. In addition to the required local effort

millage levy, each district school board may levy a

nonvoted current operating discretionary millage. The

Legislature shall prescribe annually in the appropriations act

the maximum amount of millage a district may levy.

....

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to

an amount that, when combined with nonvoted millage

levied under this section, does not exceed the 10-mill

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limit established in s. 9(b), Art. VII of the State Constitution.

. . . Funds generated by such additional millage . . . must not

be incorporated in the calculation of any hold-harmless or

other component of the Florida Education Finance Program

formula in any year. . . .

§ 1011.71(1), (9), Fla. Stat. (2018) (emphasis added).

Both sections 1011.71(1) and (9) use the words “may levy” to describe

how a school district may increase its operating millage above the required

operating millage also described in section 1011.71(1). That is, a school

board “may levy” an increased operating millage by its own vote under

section 1011.71(1), or a school board “may levy” an increased operating

millage by voting to place an increased operating millage on the ballot and

obtaining voter approval under section 1011.71(9). The consistent use of

the words “may levy” makes both increased operating millages

discretionary. See Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)

(“The word ‘may’ when given its ordinary meaning denotes a permissive

term rather than the mandatory connotation of the word ‘shall.’”).

Because the increased operating millages permitted by sections

1011.71(1) and (9) are both discretionary, and because a school district’s

“current operating discretionary millage levy” is to be included in the

method of funding students enrolled in a charter school under section

1002.33(17)(b), the 2018 referendum’s exclusion of charter schools

violated section 1002.33(17)’s requirement that “[s]tudents enrolled in a

charter school, regardless of the sponsorship, shall be funded as if they

are in a basic program or a special program, the same as students enrolled

in other public schools in the school district.” (emphasis added). See Bank

of N.Y. Mellon v. Glenville, 252 So. 3d 1120, 1127 (Fla. 2018) (“As with any

matter involving an issue of statutory interpretation, courts must first look

to the actual language of the statute and examine the statute’s plain

meaning.”) (citation and internal quotation marks omitted); Sch. Bd. of

Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1234 (Fla.

2009) (“[W]e give full effect to all statutory provisions and construe related

statutory provisions in harmony with one another.”) (citation and internal

quotation marks omitted).

B. The school board’s arguments lack merit.

1. The school board misinterprets sections 1002.33(17) and

1011.71(9) as providing two distinct funding mechanisms. The

sections are related and must be read in harmony.

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The school board argues sections 1002.33(17) and 1011.71(9) provide

two distinct funding mechanisms and, therefore, section 1002.33(17) has

no application to the instant case. According to the school board,

“[g]eneral funding for charter schools under [section 1002.33(17)(b)]

includes a mandatory requirement that [Florida Education Finance

Program] funds be distributed to charter schools,” but section 1011.71(9)

explicitly states “additional millage for school operational purposes”

generated after a local referendum or general election “do not become part

of the calculation of the Florida Education Finance Program.”

The flaw in the school board’s reasoning is that charter schools’ general

funding under section 1002.33(17)(b) does not include only Florida

Education Finance Program components. Rather, section 1002.33(17)(b)’s

plain language provides charter schools’ funding is “the sum of” three

sources: (1) “the school district’s operating funds from the Florida

Education Finance Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,” (2)

“discretionary lottery funds,” and (3) “funds from the school district’s

current operating discretionary millage levy.” That sum is then “divided

by total funded weighted full-time equivalent students in the school

district; multiplied by the weighted full-time equivalent students for the

charter school.” Id.

The flaw in the school board’s reasoning arises from its misapplication

of the word “including” within section 1002.33(17)(b). According to the

school board, the word “including” modifies each funding component

which follows – “gross state and local funds, discretionary lottery funds,

and funds from the school district’s current operating discretionary

millage levy” – thus making each component a part of the Florida

Education Finance Program formula.

However, if each funding component following the word “including”

already was included in “the school district’s operating funds from the

Florida Education Finance Program as provided in s. 1011.62 and the

General Appropriations Act,” what else is the fund for students enrolled in

a charter school to be “the sum of”? The question cannot be answered,

because interpreting the word “including” as modifying each funding

component stated within section 1002.33(17)(b) improperly renders the

phrase “the sum of” as mere surplusage. See Sch. Bd. of Palm Beach Cnty.,

3 So. 3d at 1233 (“Basic to our examination of statutes, and an important

aspect of our analysis here, is the elementary principle of statutory

construction that significance and effect must be given to every word,

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phrase, sentence, and part of the statute if possible, and words in a statute

should not be construed as mere surplusage.”) (citation and internal

quotation marks omitted).

The only logical construction of section 1002.33(17)(b) is that the word

“including” modifies only its nearest reasonable referent, that is, “gross

state and local funds.” See Scherer v. Volusia Cnty. Dep’t of Corrs., 171

So. 3d 135, 138 (Fla. 1st DCA 2015) (“The [nearest-reasonable-referent]

canon holds simply that, whether coming before or after what is modified,

modifiers (adjectives, adverbs, prepositional phrases, restrictive clauses)

should be read as modifying the nearest noun, verb, or other sentence

element to which they can reasonably be said to pertain.”) (emphasis

added).

Thus, the proper construction of section 1002.33(17)(b) is that the basis

for the agreement for funding students enrolled in a charter school shall

be the sum of “the school district’s operating funds from the Florida

Education Finance Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,” “discretionary

lottery funds,” and “funds from the school district’s current operating

discretionary millage levy.”

As explained in Section A above, “funds from the school district’s

current operating discretionary millage levy” include increased operating

millages permitted by both sections 1011.71(1) and (9).

2. The school board overlooks section 1002.33(17)’s plain

meaning that charter school students shall be funded by the same

method as other public school students.

The school board correctly argues that section 1002.33(17) describes

the method of funding charter school students. However, the school board

then argues the method of funding charter school students is not the same

as the method for funding public school students, despite the plain

meaning of section 1002.33(17)’s first sentence – “Students enrolled in a

charter school, regardless of the sponsorship, shall be funded as if they

are in a basic program or a special program, the same as students enrolled

in other public schools in the school district.” (emphasis added).

The school board seeks to justify its disregard of the plain meaning of

“the same as” by its own attempted application the nearest-reasonable-

referent canon. According to the school board:

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Applying this principle to the sentence at issue, it is clear that

the modifier “the same as” must be read to modify the entire

nearest antecedent phrase – “shall be funded as if they are in

a basic program or a special program.” Appellants simply

ignore the words “as if they are in a basic program or a special

program” between “funded” and “the same as.” . . . It defies

logic to interpret “the same as” to modify only the first few

words in the antecedent clause but not the nearer, remaining

words. It would also render the words “shall be funded as if

they are in a basic program or a special program”

meaningless, contrary to basic principles of statutory

construction. It is an “elementary principle of statutory

construction that significance and effect must be given to

every word, phrase, sentence, and part of the statute if

possible, and words in a statute should not be construed as

mere surplusage.” Mendenhall v. State, 48 So. 3d 740, 749

(Fla. 2010).

(emphasis added).

The school board misapplies the nearest-reasonable-referent canon by

considering only the “nearest antecedent phrase.” (emphasis added). As

our sister court explained, the nearest-reasonable-referent canon may rely

on a modifier which “com[es] before or after what is modified.” See Scherer,

171 So. 3d at 138 (“The [nearest-reasonable-referent] canon holds simply

that, whether coming before or after what is modified, modifiers (adjectives,

adverbs, prepositional phrases, restrictive clauses) should be read as

modifying the nearest noun, verb, or other sentence element to which they

can reasonably be said to pertain.”) (emphasis added); see also Antonin

Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

152 (2012) ([T]he nearest-reasonable-reference canon “applies not just to

words that precede the modifier, but also to words that follow it.”)

(emphasis added).

Applying the nearest-reasonable-referent canon to section

1002.33(17)’s first sentence, the modifier “the same as” may apply to the

antecedent phrase “shall be funded as if they are in a basic program or a

special program,” or it may apply to the subsequent phrase “students

enrolled in other public schools in the school district.” The question is, to

paraphrase our sister court, to which nearest sentence element can the

modifier “the same as” reasonably be said to pertain? The most reasonable

interpretation is that “the same as” modifies the subsequent phrase

“students enrolled in other public schools in the district,” because “the

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same as” draws a direct comparison to the earlier phrase “[s]tudents

enrolled in a charter school.”

In reaching our opinion, we have not ignored the antecedent phrase “as

if they are in a basic program or a special program” within section

1002.33(17)’s first sentence. On the contrary, we conclude the antecedent

phrase “as if they are in a basic program or a special program” supports

appellants’ argument that charter school students are to be funded the

same as other public school students. That is because “basic program”

and “special program” are statutorily-defined terms which plainly apply to

both charter school students and public school students.

Section 1011.61(6), Florida Statutes (2018), defines “Basic programs”

as “includ[ing], but . . . not limited to, language arts, mathematics, art,

music, physical education, science, and social studies.”

Section 1003.01(10), Florida Statutes (2018), defines “Special program”

as synonymous with “Alternative measures for students with special

needs” and “mean[ing] measures designed to meet the special needs of a

student that cannot be met by regular school curricula.”

Section 1003.01(3)(a), Florida Statutes (2018), which defines

“Exceptional student,” elucidates what types of “special programs” exist:

“Exceptional student” means any student who has been

determined eligible for a special program in accordance with

rules of the State Board of Education. The term includes

students who are gifted and students with disabilities who

have an intellectual disability; autism spectrum disorder; a

speech impairment; a language impairment; an orthopedic

impairment; an other health impairment; traumatic brain

injury; a visual impairment; an emotional or behavioral

disability; or a specific learning disability, including, but not

limited to, dyslexia, dyscalculia, or developmental aphasia;

students who are deaf or hard of hearing or dual sensory

impaired; students who are hospitalized or homebound;

children with developmental delays ages birth through 5

years, or children, ages birth through 2 years, with

established conditions that are identified in State Board of

Education rules pursuant to s. 1003.21(1)(e).

(emphasis added).

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Based on the foregoing, we agree with appellants’ argument that, under

section 1002.33(17)’s plain meaning, “Students enrolled in a charter

school, regardless of the sponsorship, shall be funded as if they are in a

basic program or a special program, the same as students enrolled in

other public schools in the school district.” (emphasis added).

3. Contrary to both sides’ arguments, the Legislature’s 2019

amendment of section 1011.71(9) should not affect our

interpretation of the 2018 version of section 1011.71(9).

In 2019, the Legislature amended section 1011.71(9) to add the

following language shown in bold:

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to an

amount that, when combined with nonvoted millage levied

under this section, does not exceed the 10-mill limit

established in s. 9(b), Art. VII of the State Constitution. Any

such levy shall be for a maximum of 4 years and shall be

counted as part of the 10-mill limit established in s. 9(b), Art.

VII of the State Constitution. For the purpose of distributing

taxes collected pursuant to this subsection, the term

“school operational purposes” includes charter schools

sponsored by a school district. Millage elections conducted

under the authority granted pursuant to this section are

subject to s. 1011.73. Funds generated by such additional

millage do not become a part of the calculation of the Florida

Education Finance Program total potential funds in 2001-

2002 or any subsequent year and must not be incorporated

in the calculation of any hold-harmless or other component of

the Florida Education Finance Program formula in any year.

If an increase in required local effort, when added to existing

millage levied under the 10-mill limit, would result in a

combined millage in excess of the 10-mill limit, any millage

levied pursuant to this subsection shall be considered to be

required local effort to the extent that the district millage

would otherwise exceed the 10-mill limit. Funds levied under

this subsection shall be shared with charter schools based

on each charter school’s proportionate share of the

district’s total unweighted full-time equivalent student

enrollment and used in a manner consistent with the

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purposes of the levy. The referendum must contain an

explanation of the distribution methodology consistent

with the requirements of this subsection.

§ 1011.71(9), Fla. Stat. (2019) (emphasis added).

According to appellants, the 2019 Legislature’s addition of the bolded

sentences was meant to clarify the Legislature’s intent for the 2018

referendum’s approved millage increase under section 1011.71(9) “to be

shared with public charter schools all along.” In support, appellants cite

several Florida Supreme Court cases, including Matthews v. State, 760 So.

2d 1148 (Fla. 2000), to argue “a court may consider an amendment to a

statute soon after controversies as to the interpretation of the original act

arise as legislative interpretation of the original law. Such subsequent

amendments to a statute, which serve to clarify rather than change existing

law, are entitled to substantial weight in construing the earlier law.” Id. at

1150 (citation omitted) (emphasis added).

Here, appellants argue, a growing controversy existed two years earlier

about whether voted operating discretionary millage revenues must be

shared with public charter schools. See Indian River Charter High Sch., Inc.

v. Sch. Bd. of Indian River Cnty., Case No. 31-2016-CA-000432 (Fla. 19th

Cir. Ct. June 13, 2017) (circuit court held the Indian River County School

Board was required to share voted millage levy revenues with charter

schools). Thus, appellants argue, the Legislature’s 2019 amendment to

section 1011.71(9) was meant to clarify that “[i]t was the intent of the

Legislature all along for Voted Millage funds to be shared with public

charter schools, even under the prior version of section 1011.71(9).”

On the other hand, the school board argues the 2019 Legislature’s

addition of the bolded sentences necessarily means those provisions did

not exist within the 2018 version of section 1011.71(9). In support, the

school board cites Arnold v. Shumpert, 217 So. 2d 116, 119 (Fla. 1968)

(“[W]hen a statute is amended, it is presumed that the Legislature intended

it to have a meaning different from that accorded to it before the

amendment.”). The school board also counters appellants’ reliance on

cases like Matthews with other Florida Supreme Court cases holding it is

inappropriate to use an amendment enacted several years after the

original enactment to “ clarify” original legislative intent. See, e.g., State

Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995) (“[A]

clarifying amendment to a statute that is enacted soon after controversies

as to the interpretation of a statute arise may be considered as a legislative

interpretation of the original law and not as a substantive change. It would

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be absurd, however, to consider legislation enacted more than ten years

after the original act as a clarification of original intent[.]”).

In our opinion, rather than attempting to choose one viable statutory

construction canon over another in determining the 2019 amendment’s

effect on section 1011.71(9), we simply interpret the 2018 version of

section 1011.71(9) as written. If we had been called upon to interpret the

2018 version of section 1011.71(9) before the 2019 amendment, we would

have done so, using other statutory construction canons available for our

consideration.

Also contrary to the parties’ positions, the 2019 amendment’s prior

drafts or final bill analysis should not affect our interpretation of the 2018

version of section 1011.71(9). According to the school board, the

Legislature considered in an earlier bill draft, but ultimately did not

adopt, language which would have made the 2019 amendment

retroactive. Instead, the Legislature included express language providing

that the 2019 amendment applies prospectively, which the school board

says shows the Legislature did not intend the changes to “clarify” a

requirement that already applied. On the other hand, appellants argue

the 2019 amendment’s final bill analysis states it was intended “to clarify

that the term ‘school operational purposes’ includes charter schools

sponsored by a school district.” (emphasis added).

The school board’s reliance on earlier drafts, and appellants’ reliance

on a final bill analysis, are simply not persuasive as a matter of law. See

Rollins v. Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000) (“[W]hen the statutory

language is clear, legislative history cannot be used to alter the plain

meaning of the statute.”); Am. Home Assur. Co. v. Plaza Materials Corp.,

908 So. 2d 360, 376 (Fla. 2005) (Cantero, J., concurring in part and

dissenting in part) (proposing that “legislative staff analyses add nothing

to an investigation of legislative intent”).

Conclusion

In sum, our review is limited to the 2018 versions of sections

1002.33(17) and 1011.71(9), and how those statutes may be read in

harmony according to their plain meaning. The 2018 referendum, by

excluding charter schools from that portion of the current discretionary

operating millage levy provided in section 1011.71(9), violated section

1002.33(17)’s requirement that “[s]tudents enrolled in a charter school,

regardless of the sponsorship, shall be funded as if they are in a basic

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program or a special program, the same as students enrolled in other

public schools in the school district.” (emphasis added).

Based on the foregoing, we reverse the circuit court’s final judgment

(and incorporated “Orders on Pending Motions for Summary Judgment”)

finding the 2018 referendum did not violate Florida law. We remand for

the circuit court to enter an order denying the school board’s motion for

summary judgment and granting appellants’ motions for summary

judgment.

As for the remedy on remand, the school board and the appellants have

agreed (in their requested supplemental briefing following our original

opinion) that the “non-charter” limitation in the 2018 referendum is

severable and may be stricken from the 2018 referendum. This is because

the school board’s resolution authorizing the 2018 referendum to be

placed before voters included a severability clause:

SECTION 8. SEVERABILITY. In the event that any word,

phrase, clause, sentence, or paragraph of this Resolution shall

be held invalid by any court of competent jurisdiction, such

holding shall not affect any other work [sic], clause, phrase,

sentence or paragraph.

We concur with the parties’ agreement as to severability. “When a

portion of a statute or ordinance is declared invalid the remaining portions

thereof which are severable ordinarily should be recognized as valid, and

it is the duty of the court to preserve their validity whether or not a

severability clause was included.” Dade Cnty. v. Keyes, 141 So. 2d 819,

821 (Fla. 3d DCA 1962). “The fact that the offending provision is not self-

contained in a separate section of the statute does not prohibit the court

from applying the severability rule.” Small v. Sun Oil Co., 222 So. 2d 196,

199 (Fla. 1969). Rather, “[t]he key is whether the overall legislative intent

is still accomplished without the invalid provision.” Searcy, Denney,

Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1196 (Fla. 2017).

Applying those principles here, we sever and strike the “non-charter”

limitation from the 2018 referendum, leaving the remainder of the 2018

referendum in full force and effect. Severing and striking the “non-charter”

limitation from the 2018 referendum still accomplishes the 2018

referendum’s intent to generate additional revenue “to fund school safety

equipment, hire additional school police and mental health professionals,

fund arts, music, physical education, career and choice program teachers,

- 15 -

and improve teacher pay.” The only difference is that a portion of those

funds must be shared with charter schools, for the reasons stated above.

The school board and the appellants nevertheless disagree on when the

sharing of funds generated from the 2018 referendum must commence.

The school board argues the charter schools are not retroactively entitled

to referendum funds for the 2019-2020 and 2020-2021 school years

because those funds have already been collected, obligated, distributed,

and/or spent. Instead, the school board argues, the charter schools’

remedy “must be on a going forward basis and the remainder of their

claims should be remanded for further proceedings.” According to the

school board, “apportioning funds between charter schools and [non-

charter] schools and ensuring compliance with the purposes contained in

the 2018 Referendum will involve complex legal and factual questions that

the trial court should address in the first instance.”

On the other hand, the appellants argue that the charter schools “are

entitled to receive their share of all revenues that have been collected since

the 2018 Referendum went into effect, as well as to all revenues that will

be collected during the remainder of the referendum period.” According to

the appellants, they “were seeking to enjoin the School Board and get a

favorable declaratory judgment prior to the School Board collecting,

distributing, and otherwise obligating the funds. During this appeal, with

full knowledge that this Court could overturn the decision of the trial

court, the School Board proceeded to spend the revenues from the 2018

Referendum. The School Board now attempts to use its knowing

expenditure of these funds during litigation as a shield against liability for

both the 2019-20 school year and the 2020-21 school year.”

In reply, the school board argues its actions “in budgeting and spending

the millage generated by the 2018 Referendum fall within the scope of

governmental functions that are immune from money damages under the

doctrine of sovereign immunity.” According to the school board, “[t]o

retroactively hold [it] liable for monetary damages for allocating millage

pursuant to a voter-approved referendum that was previously upheld by

two separate courts would significantly interfere with [its] control over

public funds and school budgeting. Protecting the School Board from such

interference, whether through a direct damages claim or supplemental

declaratory relief, is precisely why sovereign immunity exists.”

We conclude the issue of when the sharing of funds generated from the

2018 referendum must commence is not ripe for our review because the

circuit court, based on its findings, did not reach this issue. We remand

- 16 -

for the circuit court to conduct any necessary hearings, evidentiary or

otherwise, to determine this issue through findings of fact and conclusions

of law in the first instance, subject to appellate review.

Lastly, to preserve the school board’s ability to seek appellate review of

this opinion, we certify to the Florida Supreme Court the following question

of great public importance:

Does a local referendum which levies additional millage for

school operational purposes under section 1011.71, Florida

Statutes (2018), but which includes only non-charter schools

in the referendum, violate section 1002.33(17), Florida

Statutes (2018) (“Students enrolled in a charter school,

regardless of the sponsorship, shall be funded as if they are

in a basic program or a special program, the same as students

enrolled in other public schools in the school district.”)?

Reversed and remanded for further proceedings consistent with this

opinion; question of great public importance certified.

LEVINE, C.J., DAMOORGIAN, CONNER, FORST, KLINGENSMITH, KUNTZ, and ARTAU,

JJ., concur.

FORST, J., concurs specially with opinion.

KLINGENSMITH, J., concurs specially with opinion, in which CONNER and

FORST, JJ., concur.

GROSS, J., dissents with opinion, in which WARNER and MAY, JJ., concur.

CIKLIN, J., dissents with opinion, in which WARNER, GROSS, and MAY, JJ.,

concur.

GERBER, J., recused after supplemental briefing.

FORST, J., concurring specially.

I concur with the majority opinion’s determination that (1) this case

merits en banc review and (2) the panel’s decision should be withdrawn

and replaced with an opinion reversing the trial court’s order, finding that

the arguments of appellants, not the school board, merit summary

judgment.

As set forth in the majority opinion, a lawsuit was filed by two charter

schools and the parents of a charter school student. Their complaint

addresses the decision of the school board and the Palm Beach County

voters to request, approve and provide additional public school funding,

designated for important purposes such as school safety equipment; hiring

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additional school police and mental health professionals; funding arts,

music, physical education, career and choice program teachers; and

improving teacher pay. However, Palm Beach County charter schools and

their “over 21,000” students (per appellants’ motion for rehearing en banc)

would be excluded from this new funding, notwithstanding the fact that

they are part of the Palm Beach County public school system.

The case was briefed and addressed by a three-judge panel of this court.

That panel held for the school board, by a 2-1 vote, affirming the trial

court’s summary judgment order that rejected appellants’ challenge to the

2018 referendum. A motion for rehearing en banc was filed, requesting

that all twelve judges of the Fourth District Court of Appeal weigh in on

this case, arguing that consideration by the full court in this “exceptionally

important case” was necessary due to the “far-reaching implications of the

panel’s decision on charter school students across the state, ongoing

litigation involving the very same issue, and the varied conclusions of five

reviewing judges in three separate suits.”

As Judge Tanenbaum noted in his concurring opinion in State v.

Petagine, 290 So. 3d 1106 (Fla. 1st DCA 2020), “Florida’s en banc rule”

provides that “en banc consideration—if it is to be granted at all—certainly

must be the exception and not the rule.” Petagine, 290 So. 3d at 1111

(Tanenbaum, J., concurring in the denial of rehearing en banc). See also

Fla. R. App. P. 9.331(a) (2020) (en banc review is warranted where “the

case or issue is of exceptional importance or [where] necessary to maintain

uniformity in the court’s decisions”). As set forth below, this is such an

exceptional case.

The Issue here is One of “Exceptional Importance”

We conclude that in the field of public education the doctrine

of ‘separate but equal’ has no place. Separate educational

facilities are inherently unequal.

Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954), supplemented by 349

U.S. 294 (1955).

The unanimous opinion in Brown did not signal the end of state-

sanctioned deliberate segregation of public schools. It was merely the end

of the beginning, as more litigation and court opinions followed. See

generally Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955),

supplementing 347 U.S. 483 (1954). The Court’s 1955 opinion in Brown II

was deemed necessary to request desegregation of public schools “with all

- 18 -

deliberate speed.” Brown II, 349 U.S. at 301. These decisions were met

by various forms of opposition, most notably in Virginia, wherein the

legislature adopted a strategy of “Massive Resistance.” James H.

Hershman Jr., Massive Resistance, Encyclopedia Virginia (June 29, 2011),

https://www.encyclopediavirginia.org/massive_resistance. See generally

Ira M. Lechner, Massive Resistance: Virginia’s Great Leap Backward, 74

Va. Q. Rev. 631 (1998).

In 1959, one Virginia school board, in Prince Edward County, closed all

of its public schools in opposition to desegregation and used state tuition

grants to establish whites-only private schools. The Closing of Prince

Edward County’s Schools, Virginia Museum of History & Culture,

https://www.virginiahistory.org/collections-and-resources/virginia-

history-explorer/civil-rights-movement-virginia/closing-prince (last

visited Oct. 19, 2020). “No provision was made for educating the county’s

black children.” Id. This school board preferential treatment of one class

of students (and their parents) over another continued in Prince Edward

County until 1964, when the U.S. Supreme Court ruled that this scheme

was a violation of “equal protection of the laws guaranteed by the

Fourteenth Amendment.” Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty.,

377 U.S. 218, 225 (1964).

Appellants in the instant case have not claimed that the referendum at

issue violated their Fourteenth Amendment Equal Protection rights.

However, they have argued that:

It has always been the intention for Florida’s children to

receive comparable levels of funding regardless of what public

school they attend. Art. IX, § 1(a), Fla. Const. By opening

section 1002.33(17) in the manner that it did, the Legislature

created a baseline question to guide any interpretation of

charter school funding provisions: Are public charter schools

being funded at a comparable level to their district-operated

counterparts? Any answer other than “yes” in this respect

deserves the full scrutiny of the courts. In the instant case,

the answer is “no.” Palm Beach County public charter school

students cannot be funded at a comparable level to other

public school students in the District if they have been denied

the benefit of the proceeds from the 2018 Referendum. To

deny public charter school students an equal opportunity to a

quality education is to deny the very intent of section

1002.33(17) and article IX, section 1(a) of the Florida

Constitution.

- 19 -

(Emphasis added).

The Florida Constitution provides that “[t]he education of children is a

fundamental value of the people of the State of Florida” and that it is “a

paramount duty of the state to make adequate provision for the education

of all children residing within its borders.” Art. IX, § 1(a), Fla. Const.

(emphasis added). Moreover, “[s]tudents enrolled in a charter school . . .

shall be funded . . . the same as students enrolled in other public

schools in the school district.” § 1002.33(17), Fla. Stat. (2018)

(emphasis added).

As many as 21,000 charter school students are directly impacted by

the 2018 referendum which treats charter schools as both separate and

unequal with respect to supplemental funding for important items such as

additional school security. Although the situation in 2018-21 Palm Beach

County is not in any measure on a par with that in Virginia in 1954-65,

when segregation, discrimination and inequality were the norms and

sanctioned by state and local authorities, the school board here seems to

have taken a page from the “massive resistance” playbook in regard to full

funding for charter schools and charter school students.

During several of this century’s United States Supreme Court

confirmation hearings, the concept of a “super precedent” has come up.1

One legal academic has posited that “[t]o say a case is a super-precedent

means it is judicially unshakeable, a precedential monument which may

not be gainsaid, akin to having the statute-like force of vertical stare

decisis horizontally.” Michael Sinclair, Precedent, Super-Precedent, 14

Geo. Mason L. Rev. 363, 365 (2007). In a 2013 law journal article, then-

law professor Amy Coney Barrett stated that Brown is one of seven cases

“included on most hit lists of superprecedent.” Amy Coney Barrett,

Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1734–

35 (2013).

1See, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be

Chief Justice of the United States Before the H. Comm. on the Judiciary, 109th

Cong. 145 (2005) (statement of Chairman Arlen Specter) (questioning Justice

Roberts concerning whether he considered Roe a super precedent); Confirmation

Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of

the Supreme Court of the United States Before the H. Comm. on the Judiciary,

109th Cong. 321 (2006) (statement of Chairman Arlen Specter) (questioning

Justice Alito concerning super precedent and stare decisis).

- 20 -

My determination that this case merits en banc review rests on the

following factors: (1) the original two-judge majority’s decision is in conflict

with the principles of Brown and Griffin, a “super-precedent” and one of

its progeny; (2) that 2-1 panel decision is at odds with the text of the

Florida Constitution (establishing a “fundamental value” and “paramount

duty”) and a Florida statute’s explicit prohibition; and (3) a significant

number of individuals (the school children attending Palm Beach County

charter schools, their parents, and the county’s charter school

administrators, staff and faculty) are negatively impacted by the

underlying action of the school board, the referendum’s passage, and the

decision of the two-judge majority panel.

“Negatively impacted” may be an understatement—the school board

and voters determined the additional monies were needed “to fund school

safety equipment, hire additional school police and mental health

professionals, fund arts, music, physical education, career and choice

program teachers, and improve teacher pay.” Endeavoring to ensure

school safety is an important, if not fundamental, duty of the public school

system, owed to all of its students and staff. Accordingly, this case may

be deemed an “exceptional case,” meriting en banc review.

As noted above, I agree with the majority opinion’s analysis and

determination. I want to emphasize that my decision to join the majority

and sit en banc to address the panel’s decision was not taken lightly.

Reversal of a panel opinion by the full court should (and has been) a very

limited occurrence. Several of my colleagues object to this court granting

rehearing en banc and reversing the original panel decision, and I respect

(though respectfully disagree with) their arguments, when stripped of the

language discussed below.

A Concern

Judge Gross’s dissenting opinion, to the extent it addresses the merits

of the parties’ arguments, is comprehensive and well-reasoned (as is the

majority opinion). I must note, however, that this dissenting opinion,

joined by two of my other colleagues, begins with the exclamation that

“[t]he majority has fabricated an invalid and unauthorized remedy by

invoking the doctrine of severability, hijacking the en banc process, ignoring

binding precedent, and acting not as a court of law bound by age-old legal

precepts, but as a political body governed by the principle of majority rule.”

Gross Dissenting Op. at *23 (emphasis added). That opinion also alleges

that “[t]o resolve this political question here at issue, the majority has

- 21 -

resorted to an opaque, result-oriented analysis to shoehorn statutory

language into the result it desires.” Id. at *29.

The above-noted language characterizes the individual decisions of

seven judicial colleagues to both (1) rehear this case en banc and (2)

reverse a 2-1 panel opinion as borne out of a desire to act “as a political

body governed by the principle of majority rule.” Gross Dissenting Op. at

*23. This dissent recklessly speculates that this could “negatively affect

the public’s perception of the judiciary’s ability to render meaningful

justice.” Id. at *29. I am seriously concerned that this narrative may itself

provide rhetorical talking points to those individuals and entities,

proceeding from all points of the viewpoint spectrum, who are (and have

been) willing to irresponsibly diminish the independence and legitimacy of

the judiciary in furtherance of their agenda.

KLINGENSMITH, J., concurring specially.

I concur in the majority opinion but write to highlight a few facts either

omitted or given cursory reference by my dissenting colleagues.

After the smoke clears and the dust settles, the fact remains that the

parties themselves—and the School Board in particular—have advised this

court that the “non-charter” limitation is severable from the referendum

consistent with the School Board’s Referendum Resolution adopted July

18, 2018 as follows:

SECTION 8. SEVERABILITY. In the event that any word,

phrase, clause, sentence, or paragraph of this Resolution shall

be held invalid by any court of competent jurisdiction, such

holding shall not affect any other work [sic], clause, phrase,

sentence or paragraph.

It should also be noted that according to the record presented this court,

the drafters of the referendum (again, the School Board) were well aware

during the drafting stage of the potential illegality of the ballot proposal’s

exclusion of charter schools. “Charter schools are nonsectarian public

schools that operate under a performance contract (charter) with a public

sponsor—either a district school board or a university.” Sch. Bd. of Palm

Beach Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1228 (Fla.

2009). One month prior to the adoption of the Resolution, on June 18,

2018, Palm Beach Maritime Academy, Inc., through its counsel, sent a

letter putting the School Board on notice that the proposed 2018

Referendum was illegal in that it deprived public charter schools of their

- 22 -

right to share in the 2018 Referendum Revenues. Nonetheless, the School

Board went forward despite those concerns and finalized the language of

the referendum that was presented to the voters for approval, and now us

for review.

I share the concerns raised by my dissenting colleagues about judges

re-writing voter referendums, and acknowledge their condemnation of

court-sanctioned voter disenfranchisement, see, e.g., Jones v. DeSantis,

462 F. Supp. 3d 1196 (N.D. Fla.), rev’d en banc sub nom., Jones v. Governor

of Fla., 975 F.3d 1016 (11th Cir. 2020). However, it should be emphasized

that the drafters of the ballot language in question—the elected

representatives overseeing the Palm Beach County School District—have

expressly indicated to this court that it is, and was, their intention

(through severability) that this court address any legal flaws inherent in

the language, and to do so without striking down the entire referendum.

This court is rarely presented with such a clear and unquestionable

expression of a drafter’s intent as we have in this case.

Therefore, if my dissenting colleagues are correct that the collective will

of Palm Beach County voters is being upended by the result in this case,

and that monies which the School Board wanted to keep from the charter

schools will get allocated to them in the end, then it is not this court that

is engaged in either “flying under false colors” or “hiding the ball.” The

School Board itself has invited this result by asking us to perform our

judicial function under this stipulation. See, e.g., United States v. Bogle,

689 F. Supp. 1121, 1140 (S.D. Fla. 1988) (“Judicial power is by nature

reactive and dependent upon the interests of litigants for presentation and

illumination of the issues. The courts are not empowered to seek issues

or promulgate advice.” (internal citation omitted)). I am not so willing, as

my dissenting colleagues may be, to casually cast aside the clear

severability clause in the School Board’s Resolution.

CONNER and FORST, JJ., concur.

GROSS, J., dissenting.

I dissent. The majority has fabricated an invalid and unauthorized

remedy by invoking the doctrine of severability, hijacking the en banc

process, ignoring binding precedent, and acting not as a court of law

bound by age-old legal precepts, but as a political body governed by the

principle of majority rule.

- 23 -

The statutory analysis in this case is lengthy and difficult, but the heart

of the case is simple. Palm Beach County voters approved a referendum

to tax themselves, with the proceeds going to “non-charter District

schools.” (Emphasis supplied). The referendum presented the voters with

the following choice on the ballot:

REFERENDUM TO APPROVE AD VALOREM LEVY FOR

SCHOOL SAFETY, TEACHERS AND OPERATIONAL

NEEDS

Shall the School Board of Palm Beach County have authority

to levy 1.00 mills of ad valorem millage dedicated

for operational needs of non-charter District schools to

fund school safety equipment, hire additional school police

and mental health professionals, fund arts, music,

physical education, career and choice program teachers, and

improve teacher pay beginning July 1, 2019 and

automatically ending June 30, 2023, with oversight by the

independent committee of citizens and experts?

______Yes

______No

Finding the exclusion of charter schools from the referendum to be

unlawful, the majority has wielded the doctrine of severability to sever the

word “non-charter” from the referendum and hold that charter schools are

entitled to share in the tax proceeds. This act of judicial hocus pocus

disenfranchises the voters of Palm Beach County and violates section

1011.71(9), Florida Statutes, which requires voter approval for the tax to

be valid.

I. The Word “non-charter” Cannot Lawfully Be Severed From the

Referendum So That Charter Schools Receive Part of the Tax

Proceeds.

Section 1011.71(9), Florida Statutes (2018), requires voter approval “by

local referendum or in a general election” to validate the tax levy at issue

here. The 2018 referendum asked the voters to approve a tax “dedicated

for operational needs of non-charter District schools.” (Emphasis

supplied). The majority holds that the exclusion of charter schools from

the 2018 referendum was illegal and then severs the “non-charter”

limitation from the referendum.

- 24 -

Contrary to the majority’s conclusion, the non-charter language in the

referendum is not severable. To be sure, the Florida Supreme Court has

held the doctrine of severability applies to citizen-initiated constitutional

amendments. See Ray v. Mortham, 742 So. 2d 1276, 1281 (Fla. 1999).

And our supreme court’s reasoning in Ray would support applying a

severability analysis to local referenda.

When a part of a law is declared illegal, the remainder of the law will be

permitted to stand if:

(1) the [invalid] provisions can be separated from the remaining

valid provisions,

(2) the legislative purpose expressed in the valid provisions can

be accomplished independently of those which are void,

(3) the good and the bad features are not so inseparable in

substance that it can be said that the Legislature [or in this

case voters] would have passed the one without the other,

and

(4) an act complete in itself remains after the invalid provisions

are stricken.

Cramp v. Bd. of Pub. Instruction of Orange Cnty., 137 So. 2d 828, 830 (Fla.

1962) (formatting altered).

Here, the referendum fails prong (3) of the severability test. The “non-

charter” limitation was a material term of the referendum. Nothing is more

material in a taxing referendum than the identity of the recipients of the

tax proceeds. The voters never consented to a levy for the operational

needs of charter schools. Thus, the provision excluding charter schools

from funding is so inseparable in substance from the remainder of the

referendum that it cannot be said the voters would have passed the

referendum without it.

To grant appellants the remedy they seek—obtaining a share of the

proceeds of the referendum for charter schools—is akin to “hiding the ball”

under Armstrong v. Harris, 773 So. 2d 7, 18 (Fla. 2000). A “ballot must

give the voter fair notice of the decision he must make.” Askew v.

Firestone, 421 So. 2d 151, 155 (Fla. 1982).

- 25 -

The referendum identified the recipients of the proposed tax as non-

charter schools. A later inclusion of charter schools as recipients of the

tax monies would be a classic example of “flying under false colors” or

“hiding the ball,” conduct that would justify the invalidation of the

referendum because it is impossible to say how the electorate would have

voted “if the voting public had been given the whole truth.” Armstrong,

773 So. 2d at 20 (quoting Wadhams v. Bd. of Cnty. Comm’rs, 567 So. 2d

414, 417 (Fla. 1990)).

In fact, in a voter information sheet distributed prior to the referendum,

the School Board stated unequivocally that charter schools would not

receive any portion of the funds generated by the levy. 2 Now, by

stipulation, the School Board has gone back on its representation to the

voters, agreeing that the “non-charter” limitation is severable. If this isn’t

hiding the ball, what is?

The severability clause in the School Board’s resolution authorizing the

referendum does not change the analysis. The referendum itself does not

contain a severability clause. Thus, it cannot be said that the voters ever

expressed a preference for severability.

The existence of a severability clause in a resolution authorizing a

referendum is different from a severability clause within a statute. A

severability clause within a statute is relevant because it expresses the

Legislature’s intent as to severability. In this case, by contrast, the School

Board’s intent as to the severability of any invalid portion of the resolution

does not express the voters’ intent. The key question is whether the voters

expressed a preference for severability of any invalid portion of the

referendum. They did not.

In short, the referendum’s proceeds cannot be shared with the County’s

charter schools because the voters never approved a levy for the benefit of

charter schools.

Section 1011.73 articulates the remedy for an illegal referendum:

invalidation of the election. See § 1011.73(1), Fla. Stat. (2018) (“In the

event any such election is invalidated by a court of competent jurisdiction,

such invalidated election shall be considered not to have been held.”); §

1011.73(2), Fla. Stat. (2018) (similar). Judge Gerber’s original panel

2 See The School District of Palm Beach County’s 2018 Tax Referendum FAQ,

https://www.palmbeachschools.org/UserFiles/Servers/Server_270532/File/TE

N/Referendum%202018/!Ref2018_FAQ.pdf (last visited Jan. 21, 2021).

- 26 -

dissent recognized as much, given his proposed disposition to remand for

the circuit court to invalidate the referendum. Consequently, even if the

new en banc majority’s interpretation of section 1002.33(17) were correct,

the only legally-proper remedy would be to invalidate the 2018

referendum.

Rather than taking that principled approach and acknowledging the

only proper remedy is the referendum’s invalidation, the majority has

instead rewritten the referendum and pulled a bait-and-switch upon the

voters of Palm Beach County. By judicial fiat, the majority has imposed a

levy for the benefit of charter schools that the voters never approved “by

local referendum or in a general election” as required by section

1011.71(9).

II. Because the Legislature Amended the Applicable Statute to

Prevent Charter Schools from Being Omitted from a Similar

Taxing Referendum, the Case or Issue is not of “Exceptional

Importance.”

Under Florida Rule of Appellate Procedure 9.331(a), “[e]n banc hearings

and rehearings shall not be ordered unless the case or issue is of

exceptional importance or unless necessary to maintain uniformity in the

court’s decisions.” The original panel opinion did not conflict with any

existing decision. It was a case of first impression. Thus, en banc

consideration is only appropriate if the case or issue is of “exceptional

importance.”

This case involved the political question of whether a referendum to

impose a discretionary millage for operational expenses under section

1011.71(9) had to include charter schools. The original panel held it did

not. In 2019, our Legislature amended section 1011.71(9), Florida

Statutes (2019), to require that charter schools be included in any future

referendum. Therefore, the original panel opinion has limited application

to other cases.

When an appellate court has taken up a case en banc as being of

“exceptional importance” under rule 9.331(a), the case has involved a

significant constitutional question or has broad application to many cases.

See, e.g., Logue v. Book, 297 So. 3d 605, 620 (Fla. 4th DCA 2020) (Gross,

J., concurring specially) (finding First Amendment issue to be of

exceptional importance); In re Estate of Walker, 609 So. 2d 623, 625 (Fla.

4th DCA 1992) (finding exceptional importance in a testamentary case

interpreting the term “personal property” where the decision would have a

- 27 -

“far reaching effect”); Stone v. State, 547 So. 2d 158, 159 (Fla. 4th DCA

1989) (finding exceptional importance in a case interpreting the scope of

searches incident to lawful arrest under the Fourth Amendment); Ortiz v.

State, 24 So. 3d 596, 597 (Fla. 5th DCA 2009) (case which “fleshe[d] out

the borders of both the ‘feared medical emergency’ exception to the warrant

requirement . . . and the now well-recognized community caretaking

function of police officers” found to be exceptionally important where

original panel decision had “potentially far-reaching negative effects on the

actions of law enforcement officers in fulfilling this function”); In the

Interest of D.J.S., 563 So. 2d 655, 657 (Fla. 1st DCA 1990) (finding

exceptional importance where the case affected the rights of parents and

children throughout the state and the interpretation of Chapter 39, Florida

Statutes, as applied to termination of parental right proceedings).

When these situations are not present, and when the case does not

otherwise affect the public’s perception of the judiciary’s ability to render

justice, a case is not “enbancable.” See, e.g., Fleischer v. Hi-Rise Homes,

Inc., 536 So. 2d 1101, 1102 (Fla. 4th DCA 1988) (holding that an en banc

decision was not necessary to correct impression from prior case that

warranty deeds must contain express provisions for attorney’s fees where

offending language was not a matter of “exceptional importance” and was

not necessary to maintain uniformity in court’s decisions); Univ. of Miami

v. Wilson, 948 So. 2d 774, 792 (Fla. 3d DCA 2006) (Shepherd, J.,

concurring in denial of rehearing en banc) (finding no exceptional

importance in a wrongful death action where respondents’ recovery would

not affect the ability of other potential litigants to seek their own remedy

nor influence the “public’s perception of the judiciary’s ability to render

meaningful justice”); Gainesville Coca-Cola v. Young, 632 So. 2d 83, 84

(Fla. 1st DCA 1993) (finding a workers’ compensation case was not of

exceptional importance where the court’s opinion did not have any impact

upon the workers’ compensation jurisprudence of the state).

“‘Exceptional importance’ surely does not mean any case in which the

en banc majority disagrees with the reasoning or result of a panel

majority.” State v. Georgoudiou, 560 So. 2d 1241, 1247 (Fla. 5th DCA

1990) (Cowart, J., dissenting). Instead, “‘[e]xceptional importance’ must

be interpreted to mean a case exceptionally important to the jurisprudence

of the State as a judicial precedent.” Id. at 1247–48.

This case does not involve a significant constitutional question and will

not have broad application to other cases. The original majority holding

has been nullified by the Legislature. The applicable statutes have been

passed and amended by different Legislatures at different times over the

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last 20 years. As the Legislature did in 2019, the burden is on the

Legislature to use statutory language that expresses its political will.

Moreover, the original majority decision will not have a meaningful

impact on litigation outside the Fourth District. While the original majority

decision would initially have been binding on trial courts outside the

Fourth District, see Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992), any

similar cases (e.g., the pending Miami lawsuit 3) will inevitably be appealed

to a different District Court of Appeal, which will then have de novo review

of the statutory interpretation issue. And the Florida Supreme Court

would have jurisdiction to review any conflicting decisions among the

District Courts of Appeal. 4 Thus, because other District Courts of Appeal

are not bound by this court’s decision, the existence of similar litigation in

other Districts does not transform the case or issue here into one of

“exceptional importance.”

The majority’s decision to consider this case en banc, rather than

allowing the original panel decision to stand, will also negatively affect the

public’s perception of the judiciary’s ability to render meaningful justice.

To resolve this political question here at issue, the majority has resorted

to an opaque, result-oriented analysis to shoehorn statutory language into

the result it desires.

III. The majority rewrites section 1002.33(17), Florida Statutes

(2018).

3 A circuit court in Miami recently decided Archimedian Academy, Inc. v. School

Board of Miami Dade County, Florida, Case No. 2019-030739-CA-01 (Fla. 11th

Cir. Ct. Dec. 9, 2020). Unlike the referendum in this case, the Miami referendum

did not expressly exclude charter schools from receiving funds generated by the

levy. Id. at 11. Still, the Miami circuit court concluded that nothing in the plain

language of Florida law, as it existed in 2018, required the School Board of Miami

Dade County to provide a proportional share of the referendum levy funds to

charter schools. Id. at 19. Reference to the circuit court’s online docket reveals

that a notice of appeal has been filed in that case.

4 The majority’s certification of a question of great public importance is curious.

In supplemental briefing, the parties stipulated that the doctrine of severability

applied, subscribing to the principle that half a loaf is better than none. Neither

party has the incentive to seek review in the Florida Supreme Court where one

possible outcome would be the invalidation of the entire referendum. At the end

of the day, no one, not even this court, is looking out for the voters.

- 29 -

Apart from the majority’s improper decision to consider this case en

banc, its interpretation of section 1002.33(17), Florida Statutes, is deeply

flawed. By means of interpretive legerdemain, the majority has rewritten

section 1002.33(17), Florida Statutes, while pretending not to do so. The

majority’s analysis, dressed in textualist garb, is a naked departure from

textualism.

A. The majority rewrites the first sentence of section 1002.33(17),

Florida Statutes.

The proper analysis must begin with the plain language of the statute.

The first sentence of the statute provides: “Students enrolled in a charter

school, regardless of the sponsorship, shall be funded as if they are in a

basic program or a special program, the same as students enrolled in other

public schools in the school district.” § 1002.33(17), Fla. Stat. (2018).

Although subsection (17) is labeled “funding,” it appears in the statute

governing charter schools—it is not found in the part of the Florida

Statutes governing funding for school districts. See §§ 1071.60–1071.78,

Fla. Stat. (2018).

The first sentence of section 1002.33(17) consists of two parts: an

operative clause and a comparative clause. Id. The operative clause of

section 1002.33(17) states that “[s]tudents enrolled in a charter school . .

. shall be funded as if they are in a basic program or a special program . .

. .” Id. The operative clause is then followed by a comparative clause: “the

same as students enrolled in other public schools in the school district.”

This comparative clause does not change the meaning of the operative

clause, but instead expresses an equality. Specifically, the phrase “the

same as” expresses an equivalence between the operative clause and the

subsequent phrase within the comparative clause.

The natural reading of this statute, then, is that students enrolled in a

charter school “shall be funded as if they are in a basic program or a

special program,” which is “the same as” how students enrolled in other

public schools in the school district are funded. In other words, the first

sentence of this funding provision describes a method of funding students

based on the Florida Education Finance Program (“FEFP”), not an amount

or source of funding. Thus, the statute sets forth a method for funding

“students enrolled in a charter school,” which is “the same as students

enrolled in other public schools in the district.”

The following example illustrates why this is the natural interpretation

of the first sentence of section 1002.33(17). Consider a hypothetical

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statute that says: “Law clerks shall be paid via direct deposit, the same as

judges.” No one would reasonably read this statute as saying that “law

clerks shall be paid the same as judges.” Such a statute is referring to a

method of payment, not an amount or source of payment.

Here, the key question is whether the referendum violates the operative

clause of section 1002.33(17)—i.e., the requirement that students enrolled

in a charter school “shall be funded as if they are in a basic program or a

special program.” The referendum obviously does not violate this

requirement. After the referendum, students enrolled in Palm Beach

County charter schools are still “funded as if they are in a basic program

or a special program.” And this is “the same as students enrolled in other

public schools in the school district.” Dissatisfied with this result,

however, the majority proceeds to legislate from the bench.

The majority accuses the School Board of misapplying the canon of the

nearest-reasonable referent, but in fact it is the majority that has

misapplied this canon. The canon “calls for a commonsense interpretation

of the way in which words are put together to form phrases, clauses, or

sentences.” Scherer v. Volusia Cnty. Dep’t of Corr., 171 So. 3d 135, 138

(Fla. 1st DCA 2015). According to the majority, the most reasonable

interpretation of section 1002.33(17) is that “the same as” modifies the

subsequent phrase “students enrolled in other public schools in the

district,” rather than the antecedent phrase “shall be funded as if they are

in a basic program or a special program.” However, in applying the canon

of the nearest-reasonable referent, the majority resorts to interpretive

sleight-of-hand.

To reach its preferred conclusion, the majority sets up a false dilemma

by claiming that “the modifier ‘the same as’ may apply to the antecedent

phrase ‘shall be funded as if they are in a basic program or a special

program,’ or may apply to the subsequent phrase ‘students enrolled in

other public schools in the school district.’” However, the modifier “the

same as” is an expression of equivalence, and thus it necessarily refers to

both the antecedent phrase and the subsequent phrase.

The question is not whether the phrase “the same as” refers to the

subsequent phrase—it obviously does. Instead, the relevant question is

whether, in referring to the antecedent phrase, the modifier “the same as”

is referring to the entire antecedent phrase or only the word “funding.” In

other words, what is the nearest reasonable referent in the antecedent

phrase? As the School Board correctly argues, the nearest reasonable

referent is the entire antecedent phrase—“shall be funded as if they are in

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a basic program or a special program.” 5 The School Board’s use of the

nearest-reasonable-referent canon is consistent with the “commonsense

interpretation” of the statute. By contrast, the majority’s use of the

nearest-reasonable-referent canon does considerable violence to the

statute, resulting in anything but a “commonsense interpretation.”

After misapplying the nearest-reasonable-referent canon, the majority

then, as if using a Jedi mind trick, inexplicably asserts that it has not

ignored the antecedent phrase “as if they are in a basic program or a

special program.” The majority goes on to assert that, because “basic

program” and “special program” are statutorily-defined terms that apply

to all public school students, the antecedent phrase “as if they are in a

basic program or a special program” actually supports the plaintiffs’

argument. But this is a non sequitur designed to distract the reader from

the fact that the majority has simply excised a key phrase from the first

sentence of section 1002.33(17).

B. The majority rewrites section 1002.33(17)(b), Florida Statutes.

In addition to rewriting the first sentence of section 1002.33(17), the

majority also rewrites section 1002.33(17)(b).

Again, we must begin with the plain language of the statute. Section

1002.33(17)(b), Florida Statutes, states that the basis for funding students

enrolled in a charter school shall be the sum of the school district’s

operating funds from the FEFP and the General Appropriations Act, and

then provides examples of the types of funds included within the FEFP and

the General Appropriations Act:

(b) The basis for the agreement for funding students enrolled

in a charter school shall be the sum of the school district’s

operating funds from the Florida Education Finance program

as provided in s. 1011.62 and the General Appropriations Act,

including gross state and local funds, discretionary

5 The majority also argues that “‘the same as’ draws a direct comparison to the

earlier phrase ‘[s]tudents enrolled in a charter school.’” To the extent the majority

is suggesting that the nearest reasonable referent in the antecedent phrase is

“students enrolled in a charter school,” this is incorrect. The statute is not saying

that “students enrolled in a charter school” are “the same as students enrolled in

other public schools in the district.” Instead, the statute sets forth a method for

funding “students enrolled in a charter school,” which is “the same as students

enrolled in other public schools in the district.”

- 32 -

lottery funds, and funds from the school district’s current

operating discretionary millage levy; divided by total

funded weighted full-time equivalent students in the school

district; multiplied by the weighted full-time equivalent

students for the charter school. . . .

§ 1002.33(17)(b), Fla. Stat. (2018) (emphasis added).

The majority interprets section 1002.33(17)(b) as meaning that the

funding for charter schools is “the sum of” (which, as explained below, the

majority takes to mean “the addition of”) three different sources: (1) “the

school district’s operating funds from the Florida Education Finance

Program as provided in s. 1011.62 and the General Appropriations Act,

including gross state and local funds,” (2) “discretionary lottery funds,”

and (3) “funds from the school district’s current operating discretionary

millage levy.”

The majority’s interpretation is a problem, however, because the statute

does not contain this enumeration scheme. The majority has simply added

these numbers to the statute in strategic locations to support its preferred

interpretation. Had the Legislature intended the majority’s interpretation,

the Legislature could have included numbers before the phrases “the

school district’s operating funds,” “discretionary lottery funds,” and “funds

from the school district’s current operating discretionary millage levy.”

But the Legislature did not do so.

The majority also asks the following rhetorical question, claiming that

it cannot be answered: “[I]f each funding component following the word

‘including’ already was included in ‘the school district’s operating funds

from the Florida Education Finance Program as provided in s. 1011.62

and the General Appropriations Act,’ what else is the fund for students

enrolled in a charter school to be ‘the sum of’?” However, this question is

based upon a flawed premise—namely, that “the sum of” as used in section

1002.33(17)(b) means “the addition of” rather than “the total amount of.”

To be sure, this is one definition of the word “sum.” See Sum, Merriam-

Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/sum (last visited September 15, 2020). But the

word “sum” can also mean a “specified amount of money” or “the whole

amount.” Id. If the word “sum” is being used in section 1002.33(17)(b) to

mean “a specified amount of money” or “the whole amount,” then the

School Board’s interpretation of the statute does not render the phrase

“the sum of” mere surplusage.

- 33 -

The question therefore becomes the following: which definition of “sum”

is being used in section 1002.33(17)(b)? “[G]ross state and local funds,”

“discretionary lottery funds,” and “funds from the school district’s current

operating discretionary millage levy” are all types of funds included within

the FEFP and the General Appropriations Act. Therefore, the word “sum”

in section 1002.33(17)(b) is not used to mean “the result of adding

numbers,” but rather is used to denote a “specified amount of money” or

“the whole amount.”

This interpretation is consistent with the natural reading of section

1002.33(17)(b), which is that each of the items listed after the word

“including” are all illustrations of components of the FEFP. It is completely

unnatural to read the word “including” as applying only to the first item of

the list. Under the same natural reading of section 1002.33(17)(b), the

referendum-based millage cannot be part of the “current operating

discretionary millage levy” in section 1002.33(17)(b).

“Current operating discretionary millage levy” refers to the single levy

contemplated under section 1011.71(1). Notably, this phrase is used in

section 1002.33(17)(b) and section 1011.71(1), but not in section

1011.71(9). Compare § 1011.71(1), Fla. Stat. (2018) (“In addition to the

required local effort millage levy, each district school board may levy a

nonvoted current operating discretionary millage.”), with § 1011.71(9), Fla.

Stat. (2018) (“In addition to the maximum millage levied under this section

and the General Appropriations Act, a school district may levy, by local

referendum or in a general election, additional millage for school

operational purposes up to an amount that, when combined with nonvoted

millage levied under this section, does not exceed the 10-mill limit

established in s. 9(b), Art. VII of the State Constitution. . . . Funds

generated by such additional millage do not become a part of the

calculation of the Florida Education Finance Program total potential funds

in 2001-2002 or any subsequent year.”).

The fact that the Legislature did not use the term in section 1011.71(9)

means that the “current operating discretionary millage levy” in section

1002.33(17)(b) does not include a separate “additional” millage levy

authorized under a referendum, which is expressly excluded from FEFP

funds. See § 1011.71(9), Fla. Stat. (2018).

Had the Legislature intended the word “including” to modify only the

phrase “gross state and local funds,” the Legislature would have written

the statute differently, such as by changing the order of the sentence, or

- 34 -

by using semicolons to separate the sentence into the three categories

preferred by the majority. Unfortunately, the majority has taken it upon

itself to rewrite the statute for the Legislature so that the statute now reads

as follows, where new meaning is teased into the statute by the insertion

of semicolons:

(b) The basis for the agreement for funding students enrolled

in a charter school shall be the sum of the school district’s

operating funds from the Florida Education Finance program

as provided in s. 1011.62 and the General Appropriations Act,

including gross state and local funds[;] discretionary lottery

funds[;] and funds from the school district’s current operating

discretionary millage levy; . . . .

§ 1002.33(17)(b), Fla. Stat. (2018) (alterations in brackets to reflect the

majority’s revisions).

IV. Prior to 2019, Section 1011.71(9) Allowed for a Voted-millage

that Excluded Charter Schools.

Appellants argue section 1011.71(9) must require any voted millage to

include charter schools to be valid. They suggest the “express language of

section 1011.71(9) specifically contemplates that the voted millage is

combined with the nonvoted millage” and together make up a school

district’s total “current operating discretionary millage.” In support of

their position, appellants cite language in subsection (9) stating that “a

school district may levy . . . additional millage for school operational

purposes up to an amount that, when combined with nonvoted millage

levied under this section, does not exceed the 10-mill limit . . . .” §

1011.71(9), Fla. Stat. (2018) (emphasis added).

However, the use of the word “combined” does not indicate that both

the nonvoted millage and voted-upon millage together comprise the

“current operating discretionary millage,” as appellants suggest. Instead,

the context of the sentence makes clear that the use of the word

“combined” refers to the combination of the various millages for the

purpose of assessing whether the combined rate complies with the overall

constitutional limit on total assessed millage.

This conclusion is supported by the fact that the language of section

1002.33(17)(b) predates the additional voted-upon millage in section

- 35 -

1011.71(9). 6 Therefore, at the time the funding provision of the charter

school statute was adopted, its reference to the “current operating

discretionary millage” could not have contemplated the voted-upon millage

because that subsection did not exist. That reference must have been

solely to the nonvoted millage, now codified at section 1011.71(1). As the

circuit court observed, had the Legislature intended to include the

additional voted-upon millage as part of charter school funding, it could

have amended the charter school statute, but there was no amendment

when the voted-upon millage provision was enacted.

In fact, the voted millage levied under section 1011.71(9) is expressly

excluded from the FEFP calculation. Because charter school funding is

based on the FEFP, the millage levied pursuant to the 2018 Referendum

in this case was not part of the “current operating discretionary millage”

that must be shared with the charter schools. The trial court properly

concluded the Charter Schools were not entitled to a share of the revenues

generated from the referendum on this basis.

V. The 2019 Amendment to Section 1011.71 Changed the law; it

did not Clarify the Law.

There is no merit to appellants’ argument that section 1011.71 should

be viewed as a clarification amidst a “growing controversy about whether

voted operating discretionary millage revenues must be shared with the

public charter schools.” The Florida Supreme Court has adopted a policy

of declining to rewrite legislation by viewing amendments as being

“clarifications” of statutes enacted many years earlier. See, e.g., State

Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995) (“[A]

clarifying amendment to a statute that is enacted soon after controversies

as to the interpretation of a statute arise may be considered as a legislative

interpretation of the original law and not as a substantive change. It would

be absurd, however, to consider legislation enacted more than ten years

after the original act as a clarification of original intent.”); Parole Comm’n

v. Cooper, 701 So. 2d 543, 544–45 (Fla. 1997) (“[I]t is inappropriate to use

an amendment enacted ten years after the original enactment to clarify

original legislative intent.”).

6 The charter school statute was enacted in 1996 (previously section 228.056,

Florida Statutes) and is now codified at section 1002.33, Florida Statutes. The

additional voted-upon millage was enacted in 2001 (previously section 236.25(6),

Florida Statutes) and is now codified at section 1011.71(9), Florida Statutes.

- 36 -

Here, the pertinent provision regarding the voted-upon millage

remained unchanged from the time of its enactment in 2001 until July 1,

2019. Under Laforet and Cooper, it is inappropriate to consider an

amendment passed 18 years after the original enactment as a clarification

of the original enactment.

There are two other reasons why the amendment was not a

clarification. First, as the School Board notes, while the original version

of the House Bill proposing the amendment to section 1011.71(9) included

a section describing the proposed amendment as “amending and clarifying

the use of certain voted discretionary operating millages,” the final version

of the bill did not include the term “clarifying.” Fla. HB 7123, § 17 (2019).

Appellants also rely upon a “Final Bill Analysis” published by the House of

Representative’s Ways & Means Committee, but that source is not

persuasive because what ultimately prevails is the statute’s actual

language, not the wording that failed to survive the legislative process. See

GTC, Inc. v. Edgar, 967 So. 2d 781, 789 n.4 (Fla. 2007) (noting that the

Florida Supreme Court is “not unified in its view of the use of legislative

staff analyses to determine legislative intent”); Am. Home Assur. Co. v.

Plaza Materials Corp., 908 So. 2d 360, 376 (Fla. 2005) (Cantero, J.,

concurring in part and dissenting in part) (proposing that “legislative staff

analyses add nothing to an investigation of legislative intent”).

Second, the Legislature ultimately did not adopt language which would

have made the amendment retroactive. An earlier version of the bill

proposing the amendment stated: “The provisions of this act relating to

ss. 1011.71 and 1002.33, Florida Statutes, amending and clarifying the

use of certain voted discretionary operating millages levied by school

districts, apply to revenues collected on or after July 1, 2019.”

(Emphasis added). However, Chapter 2019-42, Laws of Florida, Section

17, deleted the word “clarifying” and creates a prospective application only.

It states: “The provisions of this act relating to s. 1011.71, Florida Statutes,

amending the use of certain voted discretionary operating millages levied

by school districts, apply to such levies authorized by a vote of the

electors on or after July 1, 2019.” Ch. 2019-42 § 17, Laws of Fla.

(emphasis added). It is clear from the context of the sentence that all

provisions relating to section 1011.71, not just the portion pertaining to

the limited use of the funds, apply prospectively.

The amendment was a change in the law, not a clarification.

VI. Conclusion

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Today, the majority has created an invalid remedy unsupported by

existing law. To do so, it has employed rule 9.331’s en banc process

without the prerequisite to do so. Saying something is of exceptional

importance is not the same as the case or issue being of exceptional

importance.

Once having usurped the en banc rule, the majority says its decision

derives from the “plain meaning” of the statute. Don’t be fooled. What the

majority has done is rewrite the operative clause of the first sentence of

section 1002.33(17) to say that students enrolled in a charter school “shall

be funded the same as students enrolled in other public schools in the

school district.”

And to bolster this rewriting of the first sentence, the majority has also

rewritten section 1002.33(17)(b) so that charter school students shall be

funded in the same amount and from the same sources as students

enrolled in other public schools. But the statute doesn’t say that.

Prior to 2019, section 1011.71(9) allowed for a voted-millage that

excluded charter schools. That is no longer true as the Legislature has

amended the statute prospectively.

In short, there is no basis to en banc this case. There is no authority

for the majority’s magically-crafted remedy. The trial court’s decision

should be affirmed.

And last, the majority’s decision violates a principle long ago espoused

by Alexander Hamilton, who wrote that “[t]he judiciary . . . may truly be

said to have neither force nor will but merely judgment.” The Federalist

No. 78 (Alexander Hamilton) (capitalizations removed). The majority here

has not exercised its judgment—it has exercised its will.

WARNER and MAY, JJ., concur.

CIKLIN, J., dissenting.

I respectfully dissent. The majority’s unwillingness to place any

express limitations on the trial judge upon remand is riddled with potential

adverse consequences. At the very least, the majority should establish a

firm guardrail instructing the trial court that under no circumstances is

the trial judge permitted to raid the special referendum school fund

established by taxpayers, paid for by taxpayers, and specifically restricted

and earmarked by taxpayers. It troubles me that the majority has not shut

- 38 -

down that possibility—thereby giving the trial court carte blanche to ignore

the voters of Palm Beach County by invading the taxpayer lock box they

created.

The electorate clearly spoke to this issue 28 months ago in a free and

fair election and yet my friends in the majority have decided to give an

insouciant shrug to the prospect of court-sanctioned voter

disenfranchisement. The School Board’s framers of the ballot language

may have made a mistake and were not permitted to restrict taxpayer

funding for schools to only non-charter schools. 7 But voters of course, in

good faith, did not know anything about the legalities involved when they

voted on the ballot language that was presented to them. As far as voters

and taxpayers were concerned, they were promised that those additional

taxpayer funds, if the referendum passed, would be collected and

“dedicated for operational needs of non-charter District schools.”

7I am compelled to respond to the concurring opinion of my colleague, Judge

Klingensmith, where it is stated:

It should also be noted that according to the record presented [to]

this court, the framers of the referendum (again, the School Board)

were well aware during the drafting stage of the potential illegality

associated with the ballot proposal excluding charter schools. . . .

One month prior to the adoption of the Resolution, on June 18,

2018, Palm Beach Maritime Academy, Inc., through its counsel,

sent a letter putting the School Board on notice that the proposed

2018 Referendum was illegal in that it deprived public charter

schools of their right to share in the 2018 Referendum Revenues.

Nonetheless, they went forward despite those concerns and

finalized the language of the referendum that was presented to the

voters for approval, and now us for review.

While the buck stops squarely with the Palm Beach County School Board, and

while the Board has no choice but to claim full ownership of the final ballot

language it placed on the November 2018 ballot, to dispel any “concerns” about

“potential illegality associated with the ballot proposal,” the Board obtained a

detailed 11 page legal analysis and opinion from outside counsel before the Board

“went forward . . . and finalized the language of the referendum.” Presumably

they went forward because their outside counsel assured them that the ballot

language was legally sound. I do not play the role of School Board apologist but

to the Board’s credit, they were not flippant about the ballot language as my

colleagues might suggest. See THE SCHOOL BOARD OF PALM BEACH COUNTY,

FLORIDA, Agenda Item Details for July 18, 2018,

https:/go.boarddocs.com/fl/palmbeach/Board.nsf/goto?open&id=B25G6Y4259

FC (discussing and attaching legal opinion).

- 39 -

Over 72% of the electorate agreed to greater taxation for local education

with the express, straightforward proviso that the money raised by

additional taxation would only be used for public, “non-charter” schools.

I am somewhat alarmed that the majority easily “concurs” with,

acknowledges, and accepts the School Board and charter schools’ cavalier

agreement to severability—thereby ignoring the will of 528,089 Palm

Beach County voters who participated in a countywide election. Not this

court nor the School Board nor the charter schools can legally agree to

severing and striking the non-charter limitation from the 2018 referendum

as if the sanctity of voter intent is of no concern and one that can be

blithely cast aside as nothing more than an unimportant annoyance. The

majority’s assertion that “severing and striking the ‘non-charter’ limitation

… still accomplishes the 2018 referendum’s intent” is insulting to the

382,178 voters who voted yes on the ballot question, given the specific

limitations of the referendum.

This encroachment on the sanctity of voter intent is not only misguided

but dangerous as well and could conceivably produce indelible harm to the

public’s faith in free and fair elections—the centerpiece of our

constitutional republic. To ignore the specific and unequivocal limitations

placed upon the taxpayer funds generated by the referendum is an in-

your-face affront and betrayal to the voters who participated in the 2018

referendum. To reiterate, neither the School Board nor the charter schools

have legal authority to dismissively undo the will of the voters which was

loudly declared by 72% of those participating in November of 2018.

Neither the School Board nor the charter schools can now convert the

assurances made on the 2018 ballot question to a subsequent mistruth

rendering it a sucker punch to taxpayers by pulling a classic bait-and-

switch on them.

Moreover, I believe we must contemplate the issue of equitable

mootness. “An appeal is equitably moot when granting relief is possible,

but inequitable. This concept reflects an unwillingness to alter the

outcome, rather than an inability to do so.” Katelyn Knight, Equitable

Mootness in Bankruptcy Appeals, 49 Santa Clara L. Rev. 253, 262 (2009)

(footnote omitted). 8 “Under this widely recognized and accepted doctrine,

the courts have held that ‘[a]n appeal should . . . be dismissed as moot

when, even though effective relief could conceivably be fashioned,

8“Equitable mootness” tends to arise in bankruptcy proceedings. See, e.g., In re

Cont’l Airlines, 91 F.3d 553 (3d Cir. 1996). However, logic should lead us to the

conclusion that the same analysis could easily apply to the situation at hand.

- 40 -

implementation of that relief would be inequitable.’” In re Cont’l Airlines,

91 F.3d 553, 558–59 (3d Cir. 1996) (alteration in original) (quoting In re

Chateaugay Corp., 988 F.2d 322, 325 (2d Cir. 1993)).

Even if we assume that a remedy could possibly be fashioned, it is

arguable that the time has long since passed to provide the type of

extraordinary monetary relief requested by the charter schools. The

referendum passed over two years ago, and the referendum millage has

now been obligated through the 2020-2021 school year. At this late

juncture, judicial approval of the appellants’ assertion that their

declaratory judgment claim entitles them to supplemental relief in the form

of money damages to make up for prior annual School Board budgets

might very well interfere with the School Board’s sovereign budget and

planning functions by requiring it to change or undo appropriations made

years ago. Given the vast complexities associated with resource

allocations and budgeting, including the coordinated distribution of funds,

the negotiation of legal agreements, and the School Board’s commitment

to legal obligations, any remedy that could conceivably be fashioned might

be impractical, if not impossible, to implement. Perhaps we should be

reluctant to impose such relief, knowing it would place the School Board

(or any sovereign authority) in the position of having to make dramatic

public school programming alterations that were previously funded and

based upon the increased revenues derived as a result of the passage of

the referendum. To be sure, the charter schools who have sued the School

Board will not suffer harm either way; in the event that a remedy is

impossible, they simply will not receive the windfall financial benefit

envisioned by the majority.

Above everything else however, my primary concern should be clear.

Our duty has been and continues to be the sanctity of the voting process

that took place in November 2018. Sovereignty resides in the voting public

and this court should do everything in its power to minimize even the

slightest chance of voter disenfranchisement. The 528,089 voters who

showed up in the November 2018 election had a right to rely on the ballot

language that was presented to them—rightly or wrongly—by the School

Board. We should reject the notion of punishing voters for what now has

become a School Board error by virtue of the new en banc majority vote.

When the 3-judge panel opinion was released on April 22, 2020, there was

no School Board error. In other words, both the School Board and the

charter schools have “won” this case. My point being that this was and

remains a fully debatable and justiciable issue of statutory construction

and precisely why we should not permit the public will to be declared void.

This right is exclusive to each individual voter and cannot be waived by

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the trial court, the School Board, or the charter schools. As stated by the

Second District Court of Appeal:

So, consonant with the concept that the paramount right in

and to elections rests in the people for whose ultimate benefit

such elections are held in the first place, we are compelled to

hold that when qualified electors responsibly and in good faith

lay aside their every day affairs to execute [their civic duty as

voters], they have the fundamental right to the confidence that

their efforts will not thereafter be judicially rendered sterile

absent fraud or other extraordinary circumstances which

operate to deprive them of a full and efficacious vote.

Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974).

Rightly or wrongly, this is the pledge made by the School Board to its

taxpaying constituents:

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Ultimately, the parties may resolve this matter. Ultimately, the trial

court may find a remedy that is appropriate under the circumstances.

Ultimately, the School Board may decide to compensate the charter

schools or be required to pay a money judgment. Indeed, the School Board

may ultimately discover resources from which it can pay monies to the

charter schools through charitable foundations, state grants, or federal

grants. But, be that as it may, any public funds derived through the

November 2018 referendum, are, by order of the voting public, hands-off

for the trial judge and the charter schools. That is a plain, simple, and

appropriate directive from the taxpaying, voting public whose will was

expressed in November 2018 and which cannot be renounced.

As has been the unvarnished law of the state since 1888: “[I]t is a duty

[of the courts] to enforce such expression[s] of the popular will where the

elections have been free and fair, and the result thereof is clearly

ascertained.” State ex rel Smith v. Burbridge, 3 So. 869, 875-76 (Fla. 1888).

If mistakes were made by public officials, the electorate will have an

opportunity to weigh in at the ballot box, if they choose. But, respectfully,

this court should not leave open the possibility that the School Board and

charter schools can craft a remedy that would permit the School Board or

charter schools to erase the non-charter school-only proviso language of

the referendum as if it never existed. This would be at best reductive and

at worst a gross violation of the public trust. Such a downstream remedy

would be outrightly deceptive because it would be contrary to the plain-

spoken promises of the referendum ballot language, thus rendering it

inequitable and in my opinion, fundamental error.

WARNER, GROSS, and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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